UPDATE: Proposition 60 did not pass in California, losing 54 to 46, the AP reports.
Thirty-year-old porn star Ela Darling is one of the most vocal opponents to Proposition 60, a new set of California regulations advocating for safer sex in the porn industry. Tall, thin, with long blonde hair and an all-American cheerleader spirit, Darling has appeared in more than 200 adult films. Originally from Texas, she graduated from college, got a masters degree and worked as a reference librarian. Bored, she started appearing in nude bondage photo shoots and realized she really enjoyed it. Not only that, she could make a ton of money. So she moved to California to work in porn full-time.
Now, as head of the company Cam4VR, Darling is one of the leading voices in VR porn community. She sees Prop 60 as another frustrating example of what those in the porn business call "captain save a ho" – when outsiders see adult film performers as victims, and try to regulate the industry without the workers’ input.
"There is this infantilizing rescue rhetoric that they use to imply that we are these hurt, damaged souls that need to be protected from the big, bad producers," Darling says. "But nobody takes better care of ourselves than we do."
Most American-made porn is still filmed in California, meaning the law – which according to a recent L.A. Times poll, 55% of Californians currently support – could have a huge impact on the billion-dollar adult entertainment industry, and the look of modern porn. If passed, Darling warns, Prop 60 could open performers up to new levels of harassment, and even drive the industry out of California. But public health advocates maintain that elevated STD levels among performers mean it's time for the state to step in and start actually regulating adult-entertainment shoots.
Since the 1970s, L.A. County's San Fernando Valley has been home to America's billion-dollar adult film industry. And following a state court case in 1989, porn production is considered legal to film in all of California. But despite its legal status, the business has rarely been subject to any state or federal regulations.
But then in 2003, after an L.A. Times article exposed health risks for adult film performers, many in the public health community became invested in preventing the spread of STDs on porn sets. Following a heated political battle, in 2012, voters in L.A. County passed Measure B, a law that explicitly states that performers are required to wear condoms in adult films and register their shoots. Backed by the AIDS Health Care Foundation, a public health advocacy group, the law also makes L.A. County responsible for enforcing the rule.
Now, Proposition 60, which is on the California state ballot this November, essentially turns Measure B into a statewide rule. Written by the AHF, under the new law, producers must get a state health license at the beginning of any film shoot. Adult film producers must also pay for performer's testing, vaccinations and medical exams related to sexually transmitted diseases. And in the most controversial measure of the bill, any state resident could sue any adult film producer, agent, or distributor for creating films without condoms.
Although rarely acknowledged in news reports, condoms are already required on adult film shoots. The California Occupational Safety and Health Administration (Cal/OSHA), which oversees workplace safety, has repeatedly said that according to a 1992 law, condoms must be used in adult film productions to protect workers from blood-borne pathogens. However, this blood-borne pathogens law is rarely enforced. According to a spokesperson for Cal/OSHA, since 2004 there have been only 40 onsite inspections, with 49 citations for not using condoms.
In other words, Prop 60 is something of a legislative workaround. The thinking is, because Cal/OSHA rarely enforces the 1992 law, Prop 60 will allow AIDS Health Care and other private entities to bring lawsuits against producers, agents and distributors who don't use condoms in their films. Not surprisingly, many porn performers are furious with AHF and hundreds are vocally protesting these proposed rules. Meanwhile, proponents say the industry has had decades to put worker protections in place, and Prop 60 is a common-sense measure.
Ela Darling believes Prop 60 is an example of government overreach that hurts the very people it aims to protect. She has been meeting with professional unions, lobbying Democratic lawmakers and enlisting the support of unlikely allies like the California Republican party. She believes that workers are better off without Prop 60. "[AIDS Health Care] is an organization that doesn't know much about our industry that is trying to protect us from ourselves, with no comprehension that what they are doing is very harmful to us," Darling says.
In response, Ged Kenslea, a spokesperson for AHF says, "Let's start at ground zero and comply with the [1992 law] and then maybe talk about amending or changing things."
But Darling believes the unintended consequences of Prop 60 could be devastating. Under the proposed rules, any citizen could sue any porn producer, distributor or agent. Darling, who is both a performer and producer, and goes by a stage name, worries that a lawsuit could make her legal name and address public.
She is especially concerned that stalkers or obsessive fans could sue her and get this information. "People could see a film that I made where I have sex with my boyfriend without a condom, and take me to court and basically access all my personal information, and that's scary," she says.
"People think that we make so much money, but porn is like a blue-collar job," she explains. "We don't have the money to have bodyguards. We don't have the money to have security systems. We're just regular people. So this law gives people who wish us harm the opportunity to access our private information, including where we live. And that's terrifying to me."
What's more, Darling believes the industry's STD testing system, which requires a new test every 14 days, is already effective at preventing diseases, rendering the new regulations pointless. "The testing protocol we used largely filters out the risk there," she says. "If you have something, it is caught very early and treated quickly. It is not something that is a huge threat for us."
Other Proposition 60 opponents suggest the new rules make it challenging for porn performers to do their jobs. Eric Paul Leue, an adult film performer who is executive director of the Free Speech Coalition, which advocates on behalf of the adult film industry, says condom use has caused female actresses to complain about chafing on set. Male porn stars, he added, say condoms make it challenging to keep an erection.
"We want condoms. But we also want all the other things. Condoms are a method of last result, they are not the most reliable, or the most doable when they are working for eight hours," Leue says.
He argues workers should be able to use alternatives like Truvada, that can help prevent the transmission of HIV, or antibiotics as a prevention option for STDs. "Performers should be the ones that call their own shots, and they shouldn't be punished for it," Leue says.
But public health advocates like Adam Cohen, director of advocacy and policy research at AHF, says porn producers have had decades to self-regulate, and their efforts aren't working.
"We are trusting the industry to watchdog themselves," Cohen says. "It's like asking the tobacco industry to regulate themselves or asking the banking industry to regulate themselves – look what happens when we do that."
According to peer-reviewed data, there is a higher rate of STDs among porn performers than the general public. A recent UCLA study found one in four adult performers has an STD. The Los Angeles County Department of Public Health determined that adult film workers are 64 times more at-risk for gonorrhea and 34 times more at-risk for chlamydia than the general population of L.A. County. Within one year, 26 percent of adult film workers contracted these diseases again, which public health advocates say show their testing protocols are not working.
Over the last decade, performers across the country have tested positive for illnesses including HIV and syphilis, leading the Free Speech Coalition to declare industry-wide moratoriums on production and ask all shoots to stop. The CDC recently confirmed an adult performer gave HIV to another performer on-set in 2014. The individual initially tested negative for HIV, he then had condom-less sex with 12 other male performers. Several days later, he showed signs of illness, and went to another clinic and tested positive for HIV. One of the individuals who performed with him has now also tested positive.
"Taking an STD test to prevent an STD is like taking a pregnancy test to prevent pregnancy," Cohen says.
Cohen says not only are workers not told these tests can be ineffective, in general, they aren’t given any way to speak up against producers, who typically have most of the power. He explains the goal of the law is to strengthen the ability of performers to fight back against noncompliant employers, who aren't requiring workers to wear condoms, or are disputing liability if performers contract diseases on set. "The people that Cal/OSHA intends to protect are the workers," Cohen says. " The complaint system is there for a worker, but if you were wronged by a producer, you file a complaint, and Cal/OSHA doesn't investigate, we wanted to make sure that wasn't the end. We want workers to be able to say, 'I know how to hold a producer accountable.'''
Cohen and the AHF have been working closely with several former porn performers, including Derrick Burts, Rod Daily and Cameron Bay, who all claim to have contracted HIV while working in the industry, are now advocating for condoms in porn. Bay has said when she was working she was discouraged from asking for condoms, yet when she was diagnosed with HIV she did not find support within the industry. "I feel that the industry turned its back on me and I was distraught over the circumstances and felt if they did this to me they will do it to anyone," she wrote in a letter published on the porn industry blog MikeSouth.com in July 2014.
But the Free Speech Coalition maintains that Burts, Daily and Bay did not get HIV while working on an adult film sets. They say that none of the actors they worked with during that period have tested positive for HIV, and therefore they must have contracted the disease outside of the industry. Responding to Bay's case, Free Speech Coalition's Leue says, "Just because you got HIV as a bus driver, it does not mean you got it from driving a bus."
Mike South, a veteran performer and producer in the industry who runs the blog MikeSouth.com where Bay published her letter, says he has come around on Prop 60 because he has heard enough troubling reports from performers to believe adult film workers finally need some formal health and safety protections.
"I would be against it if the porn industry was doing anything at all to protect ourselves," South said. "But we have had 20 years to put in place some type of system that brings STDs under control, and improves performer health and safety, and we simply haven't done it. So if Prop 60 is what it takes to get the porn industry off their asses I support it."
However it may be a moot point. If Prop 60 passes, the porn industry has threatened to leave California or go deep underground where Cal/OSHA can't find them. And this has already started to happen. In the three years since Measure B was passed in L.A. County, the number of permits requested for porn productions has declined by 94 percent. Officials believe that's because producers are no longer requesting permits. "It's likely that many productions moved just outside the county, and many left California altogether," says Adrian McDonald, a research analyst at FilmL.A., the organization that issues permits for adult film shoots. "It's also possible, if not likely, that some productions are just not pulling permits."
But Darling insists the industry is determined to protect workers – they just want to do it on their own terms. The Free Speech Coalition is working with Cal/OSHA to develop standards that take the nature of adult film into consideration. The Adult Performer Advocacy Committee (APAC), an industry group designed to protect the health of workers, has put together a performer's bill of rights. The document outlines a performer's right to be aware of what they are doing in advance, decline particular sexual acts and have snacks and water on hand if a shoot lasts for more than six hours. APAC is working to raise awareness around racial inequality and industry-wide wage disparity for people of color.
"There are certainly things that could be corrected in the industry," Darling says. "But none of them will be corrected with this law."